Truth is Truth: U.S. Abortion Law In The Global Context

By Risa E. Kaufman & Martha F. Davis

The looming U.S. Supreme Court confirmation fight crystalizes the current battle lines over reproductive rights. For years, abortion opponents have been busy proposing and enacting new federal and state restrictions on abortion access, teeing up the opportunity for the Court to revisit the fundamental right to abortion and the robust constitutional framework protecting core personal liberty interests.

False and misleading information has been a key part of the anti-abortion toolkit. In attacking women’s reproductive rights, abortion opponents increasingly characterize laws regarding abortion access in the United States as far more permissive than the rest of the world. For support, they point to a rudimentary global tally of national laws on abortion and urge policymakers to enact bans and further restrictions on abortion access in order to bring the United States more in step with “international norms” on abortion access.

Our newly published Issue Brief exposes the fundamental flaws in this argument, explaining that international norms on abortion access cannot be portrayed through such nose counting. Abortion opponents’ uncritical reliance on a simplified scorecard is misleading, inaccurate, and ignores important protections for women’s health. Indeed, the abortion opponents’ simplified global tally fails to account for broad exceptions contained in many European abortion laws. And it fails to examine the broader context of access to reproductive health care, including access to contraception, maternal health care, and access to medical information.

For example, the global tally counts Germany as having more restrictive abortion access than the U.S. Yet Germany’s reproductive health laws provide more support for women seeking to avoid or end unintended pregnancies. Unlike the U.S., Germany offers citizens and permanent residents universal health insurance, and provides health care for refugees and undocumented immigrants who are acutely ill, in pain, or pregnant. Germany also subsidizes contraception for women under 20 years of age, and in many instances provides public funding for abortion.

In comparison, as a result of abortion opponents’ efforts, abortion laws adopted by U.S. states are typically part of a larger web of measures to obstruct access to reproductive health care. States such as Texas are making a concerted effort to limit access to abortions, essential family planning services, and other reproductive health care, and refuse to provide comprehensive sexual and reproductive health education.

The misleading global tally ignores the international trend toward liberalization of abortion law, as well. Around the world, there is an irrefutable trend toward expanding the grounds under which abortion is legal.

And the abortion opponents’ global tally ignores the fact that international human rights law recognizes and protects access to safe and legal abortion. International human rights treaties, agreements, and decisions reflect an international norm of liberalizing access to abortion and ensuring access to safe abortion care as central to ensuring women’s autonomy and reproductive health.

International comparisons are most certainly relevant touchstones for domestic policy-making and adjudication, but they are not as simple as checking a box. Accurate analyses examine access to abortion care in light of global practices as well as international human rights law and provide the basis for a more accurate and reliable comparison between the U.S. and its international counterparts.

In an environment where the very existence of truth is questioned and false statements are increasingly pawned off as true, abortion opponents in the United States are using misleading comparative data to undermine women’s fundamental rights and erode the robust constitutional framework that protects abortion access in the United States.

The stakes could not be higher.

Read the Issue Brief here.

Louisiana’s Ongoing Ethical Crisis: Why SCOTUS Should Weigh In On The Case Of Rogers Lacaze

Can a judge sit on a capital murder case when, undisclosed to the defense, that judge was accused of signing the order that released the probable murder weapon to the co-defendant? In the coming weeks, the U.S. Supreme Court will conference Lacaze v. Louisiana, the case which raises this question. The case, in fact, is a perfect vehicle for the U.S. Supreme Court to address when a judge must disclose his personal interests in a given case and recuse himself. Lacaze, who was convicted of first degree murder and sentenced to death in 1995, discovered after trial that his trial judge was laboring under this profound conflict of interest. Instead of recusing himself, Judge Frank Marullo presided over Mr. Lacaze’s capital trial and then campaigned for re-election on the resulting death sentence. What makes this case even more urgently in need of correction is that the Supreme Court already sent it back to the Louisiana Supreme Court, which, so far, got it wrong twice.

The startling facts of the case are largely uncontested: Rogers Lacaze and New Orleans Police Officer Antoinette Frank were charged with a triple homicide that was committed with a 9mm gun. The victims in the case were another New Orleans police officer and two civilians. During the investigation, the New Orleans Police Department (NOPD) found that Officer Antoinette Frank had received a 9mm gun from their own property and evidence room. The gun was released from evidence by an order bearing Judge Marullo’s signature. The NOPD’s Public Integrity Unit (PIU) opened an investigation and interviewed Judge Marullo.  The officer in charge of the gun vault insisted that he personally brought the order to Judge Marullo’s chambers for it to be signed.  Judge Marullo said his signature was forged.

Three and a half weeks later, Judge Marullo was assigned to adjudicate Mr. Lacaze’s case. Two weeks after being assigned the case, Judge Marullo was contacted again by the NOPD for a taped version of his statement. Reflecting his knowledge of the conflict, Judge Marullo refused to speak further with the investigators.  But he failed to recuse himself from the high-profile case, or disclose to Mr. Lacaze’s attorneys that he was questioned by police. Rogers Lacaze testified at trial that he did not participate in the homicide, but the Antoinette Frank told him before the crime that she was getting a 9mm gun from the police evidence room.

Judge Marullo left the defense ignorant of three key facts: (1) that there was an active investigation that confirmed the defendant’s account of how the 9mm gun was obtained by his codefendant; (2) that he had been approached as a witness in the investigation; (3) that Judge Marullo himself was alleged to have released the weapon that was likely used to murder a police officer and two civilians.

The Due Process Clause of the U.S. Constitution guarantees defendants the right to a fair and impartial judge. The U.S. Supreme Court has repeatedly maintained that due process requires recusal whenever there is an unconstitutional potential or probability of bias.

In the jurisprudence of judicial recusal, the relevant inquiry from Caperton v. A.T. Massey Coal Co. (2009) is whether the average judge is likely to be neutral in the case. Moreover, the Court has found that the failure to disclose a potential conflict also creates an appearance of bias, which alone is impermissible. Additionally, the Model Code of Judicial Conduct, adopted by most courts, insists that judges have an affirmative obligation to disclose any facts that might lead to their recusal.

In Mr. Lacaze’s case, the Louisiana Supreme Court initially dismissed his recusal challenge, finding that Judge Marullo had done nothing wrong when he failed to disclose his connection to the likely murder weapon. Last year, the U.S. Supreme Court granted Mr. Lacaze’s writ, vacated the decision and remanded it for further consideration by the Louisiana Supreme Court. But, having already been overturned by the U.S. Supreme Court, the Louisiana Supreme Court dismissed Mr. Lacaze’s recusal challenge again, which is why the case is now back at the U.S. Supreme Court, again.

While well-established constitutional due process requirements make clear that Judge Marullo should have recused himself, the Louisiana Supreme Court adopted a novel and onerous requirement for judicial recusal: proof that the judge was specifically biased against a particular party. Then, barely acknowledging the earlier remand order, the Louisiana court rejected Petitioner’s challenge.

This directly conflicts with U.S. Supreme Court jurisprudence. There is no need for this kind of specific bias in order for there to be impermissible bias that requires recusal. The facts of the case are uncontested, so the U.S. Supreme Court must now, for the second time, rebuke the Louisiana Supreme Court in order to force the state to adhere to constitutional standards in criminal law.

The Court should grant cert to make clear that the Due Process Clause does not require a showing of specific bias against a party to mandate judicial recusal and to vindicate Mr. Lacaze’s right to due process in his death penalty case.

In fact, the Court ought to consider the swifter route of summarily reversing the Louisiana Supreme Court’s decision for blatantly misapplying the Supreme Court’s judicial recusal standard. The lower court required the Petitioner to show a “probability of actual bias,” while this Court’s prior decisions make clear that even a “potential for bias” can give rise to a due process violation.

Fair and impartial judges are the foundation stone of fair courts, fair trials, and just results. There’s too much at stake in Mr. Lacaze’s case for the U.S. Supreme Court not to intervene.

Lawrence J. Fox is counsel of record on an amicus brief from the Ethics Bureau at Yale in support of Petitioner Lacaze. 

President Trump: Challenging Core First Amendment Principles

Many, including most recently some 350 newspaper editorial boards, have bemoaned President Donald Trump’s attacks on freedoms of speech and press. But like much else during this presidency, these attacks tend to be discussed on a news cycle-basis. There is a larger picture here, and only by seeing it can we get a true sense of what is actually at stake. The Trump Administration is not just at war with the institutional press. In a much broader sense, President Trump has challenged a number of core principles associated with the First Amendment. These principles, and the values they support, are not partisan. They benefit us all, and so threats against them ought to concern us all.

A free press is not a threat to democracy, but a condition for sustaining it. 

The President’s constant refrain that the press is “the enemy of the people” and the “opposition party” is belied by nothing short of the history of journalism itself. Of course the press makes erroneous statements and sometimes abuses its own powers. We ought to carefully consider the balance between press freedoms and reputational harms. However, in a case decided in 1931, which invalidated a prior restraint against newspapers, the Supreme Court reminded us that “to the press alone the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression.” It also credited the press with helping transform the United States from a “sickly Confederation” into a “free and independent nation.” As the size and complexity of government have increased, the Court presciently observed, “the opportunities for malfeasance and corruption have multiplied” and “the danger of its protection by unfaithful officials” has shown “the primary need of a vigilant and courageous press.” Now more than ever, our nation needs a “vigilant and courageous press.”

Censorial power is in the people over the government, not in the government over the people.

James Madison, the architect of the First Amendment, uttered these words in a debate concerning press censorship. Madison had railed against the Sedition Act, a 1798 federal law which imposed criminal penalties for publishing or communicating statements about the president or the federal government that would bring either into contempt or disrepute, or incite hatred toward them. Although some were certain that the Act was unconstitutional, it was not until 1964 that the Supreme Court expressly repudiated the crime of sedition. It observed that the “central meaning of the First Amendment” is that the people must be free to criticize their government and officials. President Trump has sought to resurrect sedition. He has rewarded those who praise him and sought to punish his critics. Whether it takes the form of revoking the security clearances of former intelligence officials, or blocking critics from his Twitter timeline, this is a censorial abuse of executive power. It matters not whether the former official has a legal right to the clearance or the Twitter user has a right to comment. There is a corollary First Amendment principle at work, namely that when the government makes a benefit available it cannot deny or condition its continued enjoyment upon the suppression of official criticism. If the people are to govern, punishment for sedition cannot stand.

No official can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.

The President’s attacks on NFL players who refuse to stand at attention, hand over heart, during the National Anthem challenges this core First Amendment principle. As Justice Jackson wrote for the Supreme Court in 1938, “struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men.” In one of the most iconic passages ever written about freedom of speech Jackson observed: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Insisting that every player   communicate the same sentiment, in the same manner, at a public sporting event – or be fired – is precisely the sort of governmental coercion the “fixed star” principle prohibits.

Speech on matters of public concern – including by public employees – must remain free.

The Trump Administration has apparently insisted that some campaign officials and top presidential advisors sign non-disclosure agreements that prohibit them from disparaging the president or his businesses, as well as others in the administration. In all likelihood, such agreements are unenforceable against executive employees. Public employees do not relinquish their free speech rights when they accept positions within government. Indeed, as the Supreme Court has recognized, these employees are often in the best position to comment upon the administration of government and other matters of public concern. To be sure, government employers are entitled to insist on secrecy with regard to national security and other sensitive matters. But the administration’s non-disclosure agreements appear to extend well beyond such concerns. The purpose seems to be, once again, to silence potential critics of the administration. As the Supreme Court has noted, “statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors.”

As the president continues to speak out against, intimidate, and silence his critics, we ought to keep these core First Amendment principles in mind. As the Supreme Court recognized, the principles were formed “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” During the first half of his first term, the President has posed some serious challenges to that national commitment. It is up to all of us to respond.

Making Sense of the Chaotic West Virginia Supreme Court Impeachment

This blog was originally posted in Facing South.

For the second time this year, a state legislature is contemplating the impeachment of an entire state supreme court: The West Virginia Supreme Court faces trial next week in the Republican-controlled state Senate.

The impeachment charges — which include lavish spending on renovations and excessive salaries for semi-retired judges — are sure to anger legislators who grappled with an $11 million budget shortfall last year. The most serious allegations involve Republican Justice Allen Loughry, who in addition to overspending and taking home office furniture was charged with lying to federal investigators.

Ironically enough, Loughry penned a book about political corruption in the state, in which he wrote, "Of all the criminal politicians in West Virginia, the group that shatters the confidence of the people the most is a corrupt judiciary."

As news spread of the justices' spending spree, legislators toured the court on Aug. 7. House leaders surprised their Democratic colleagues the next day by announcing that they would vote on impeaching not just Loughry but the entire court.

Before two justices recently resigned, a majority of the justices were Democrats. Though West Virginia switched to nonpartisan judicial elections in 2016, most of the justices were elected in partisan races. While Democratic lawmakers have said the case for Loughry's impeachment was clear, some believe the charges related to overspending are not impeachable.

So how did Republican lawmakers come to embrace such an extreme action?

The proceedings in West Virginia are playing out against a broader trend of conservative politicians targeting judges who rule against them. Pennsylvania's GOP-controlled legislature also considered impeaching the entire state Supreme Court this year for striking down a gerrymandered election map. In North Carolina, Republican leaders have lashed out at the courts for the same reason, passed laws changing how judges are chosen, and threatened impeachment. Meanwhile, President Trump and Attorney General Jeff Sessions have questioned the very legitimacy of federal judges who ruled against them.

Amid this national atmosphere of judicial intimidation, the West Virginia court's spending scandal presented Republican legislative leaders with an opportunity for radical change.

Democratic Justice Menus Ketchum left the court on July 11, a few weeks before pleading guilty to a federal fraud charge. Justice Robin Davis, also a Democrat, retired this week after the state House voted to bring impeachment charges. She did so in time to let voters choose her successor rather than having Republican Gov. Jim Justice — a billionaire whose coal companies have a history of worker safety violations — appoint her replacement in case of impeachment.

Democratic legislators accused Republican leaders of intentionally delaying impeachment proceedings until after the Aug. 14 deadline for having voters choose new justices in this year's election. If the three remaining justices are removed now, the governor would appoint replacements to serve until 2020.

Big Money shaped the court

Long before this latest scandal, the West Virginia Supreme Court was targeted by conservative special interests seeking to influence its makeup. That spending itself has led to ethics problems, such as when coal mogul Don Blankenship spent $3 million in 2004 to unseat a member of the court and elect Justice Brent Benjamin, who went on to vote to overturn a $50 million verdict against Blankenship's company. The U.S. Supreme Court ultimately overturned that decision due to the glaring conflict of interest.

The controversy over Blankenship's money led legislators to establish a public financing program for judicial elections. However, that program was challenged in 2016, when the Republican State Leadership Committee (RSLC) dumped millions of dollars into a West Virginia Supreme Court election. The RSLC, the state Chamber of Commerce, and other big business interests spent millions to defeat Justice Benjamin — whose re-election campaign was funded by public financing, not Blankenship — and elect Justice Beth Walker.

As this corporate money poured into its elections, the West Virginia Supreme Court also found itself in the crosshairs of another corporate-funded group dedicated to making it harder for injured people to file lawsuits.

For years, West Virginia or parts of it made the American Tort Reform Association's (ATRA) annual list of "Judicial Hellholes," supposedly places where "judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits." The group gets funding from the Koch brothers, organizes "astroturf" groups that work to create the impression of grassroots support for tort reform, and has been a major funder of the RSLC. The ATRA recently singled out Davis for what it suggested were conflicts of interest.

The so-called "tort reform" laws promoted by ATRA have a disproportionate impact on the most severely injured plaintiffs. Such laws can be particularly harmful in a state like West Virginia. "With regulatory oversight of mining and other industries so weakened, the right to bring reckless corporations to court is more precious than ever," as the Center for Justice & Democracy has pointed out.

Even though ATRA's list of "hellholes" is based on an unscientific survey of corporate lawyers, Republican legislators used it to justify new tort reform laws that limit lawsuits by injured people. In its most recent report, ATRA praised West Virginia's tort reform laws but said the state's high court "remains a concern and requires a watchful eye."

If any justices are impeached next week and the governor appoints their replacements, the result would likely be a court that the ATRA and the RSLC would prefer: one that puts the interests of corporations over those of ordinary West Virginians.

3D Printed Firearms and Brett Kavanaugh’s Misguided Approach to the Second Amendment

Supreme Court nominee Brett Kavanaugh has crafted a distinctive approach to Second Amendment issues. In his view, history is everything, and courts deciding Second Amendment cases should pay no attention to the effects that gun laws have in the real world we live in today. The current controversy over 3D printed firearms provides a striking example of the flaws in Kavanaugh’s approach.

Kavanaugh’s Hyper-Originalist Theory

Ten years ago, the Supreme Court decided that the Second Amendment protects a right to have guns for purposes unrelated to service in a militia. The Court did not provide clear guidance about how judges should go about deciding which gun control laws violate the right to keep and bear arms.

Since that time, lower courts across the nation have faced a wave of Second Amendment claims about a wide variety of gun laws. The vast majority of judges have adopted a two-step analysis. They begin by asking whether a challenged law restricts activity that Americans at the time of the Second Amendment’s ratification, in 1791, would have regarded as being covered by the right to keep and bear arms. If the answer to that historical inquiry is positive or inconclusive, courts move on to evaluate whether the challenged law serves government interests sufficiently important to justify the restrictions imposed by the law. This approach gives due weight to historical evidence about the Second Amendment’s meaning, but also appropriately considers modern realities like the purposes and effects of the gun laws that legislatures have chosen to enact.

Brett Kavanaugh is one of a small number of judges who oppose that standard approach. In a dissent from a D.C. Circuit ruling in 2011, Kavanaugh argued that constitutional text, history, and tradition should be the only relevant considerations for courts assessing Second Amendment claims. He disavowed the use of any of the familiar constitutional tests, like strict scrutiny or intermediate scrutiny, on the ground that those tests improperly take into account the strength of the government interests served by the challenged law.

The text of the Second Amendment does not say anything about background checks, concealed weapon licensing, or any other specific type of gun regulation, so the text is of little use in resolving the sorts of detailed questions that courts face in Second Amendment cases today. With no constitutional text that is dispositive, Kavanaugh’s approach essentially boils down to being entirely about history and tradition. According to Kavanaugh, looking at history and tradition means assessing what people thought about the Second Amendment at the time of its ratification and in the next few decades after that. In short, Kavanaugh believes Second Amendment cases should be decided entirely on the basis of evidence about what people thought several hundred years ago, with no consideration given to the role that firearms play in the modern world and the reasons why legislatures have chosen to put some restraints on firearm acquisition and use.

The Emptiness of Kavanaugh’s Theory

Even if Kavanaugh’s method of constitutional interpretation was theoretically appealing, it is not feasible for judges to actually use it to decide any cases. Kavanaugh admits that analyzing the history and tradition of gun laws and gun rights in America “does not always yield easy answers.” But the truth is that history and tradition alone virtually never yield any real answers to anything that courts must decide in Second Amendment cases. The issues that courts face today just didn’t exist two hundred years ago in a world where everything – firearms technology, regulatory approaches, law enforcement, and so on – was so different.

I’ve discussed some examples of this problem in the past, but a great new example can be found in the controversy over whether the government can stop people from posting information on the internet about how to make plastic firearms with 3D printers. On this blog, Professor Timothy Zick recently provided a cogent analysis of the key constitutional questions surrounding the issue. He predicted that Second Amendment claims about a right to post the disputed information would fail because “under any standard of scrutiny, the limited restriction on access to 3D code would likely be outweighed by the government’s law enforcement and safety interests.”

He’s correct, or at least he’s correct that almost all judges would reach that conclusion. But Brett Kavanaugh is in the tiny minority of judges who say that even the most urgent and compelling law enforcement and safety interests are irrelevant in a Second Amendment case. No matter how strong the government’s interests may be, Kavanaugh’s theory would require a court to take a purely historical approach to deciding the Second Amendment issues.

Did Americans in 1791 think that the right to keep and bear arms included a right to use the internet to distribute code for programming a 3D printer to make a firearm? Just asking the question is enough to reveal the absurdity of trying to use a purely historical approach to decide the complex and difficult constitutional issues that arise in the modern world. History certainly should be an important element of constitutional analysis, but attempting to make it the sole consideration is hopelessly impractical.

The “Ginsburg Rule” Should Not Save Brett Kavanaugh

Some senators are already pre-excusing President Trump’s Supreme Court nominee, Judge Brett Kavanaugh, from answering their colleagues’ questions about his judicial philosophy. “Senators should not try to extract assurances from nominees on how they will decide particular cases in exchange for a confirmation vote," Senate Judiciary Chairman Charles Grassley said. “I expect any nominee to likewise follow the Ginsburg Standard”—a reference to the standard supposedly set by Justice Ruth Bader Ginsburg at her Senate confirmation hearing in 1993.

But contrary to senators who want to run interference for Judge Kavanaugh, the real standard set by Ginsburg requires Kavanaugh to provide full, meaningful answers about his views on the scope of the Constitution’s protections. That’s especially important when it comes to women’s reproductive rights. Because President Trump has repeatedly vowed to appoint Supreme Court justices who will overturn Roe v. Wade, the Senate cannot settle for filibustering non-answers from Kavanaugh on whether the Constitution protects a woman’s right to control her own body. A non-answer can only be understood as a hostile answer.

The so-called “Ginsburg Rule” refers to then-Judge Ginsburg’s statement at her Senate confirmation hearing that she would provide “no hints, no forecasts, no previews” of how she might vote in a future Supreme Court case. She declined to offer prejudgments on issues she’d be likely to decide on the Court, such as “[w]hat regulations will be permitted” under the constitutional standard for state abortion restrictions that the Supreme Court had recently announced in Planned Parenthood v. Casey.

But Ginsburg did not categorically refuse to provide the Senate with insight about her judicial commitments. In fact, she affirmatively told the Senate that the Constitution protects a woman’s “right to decide whether or not to bear a child,” which she said was “central to a woman’s life [and] to her dignity.” There is no rule or ethical guideline preventing Judge Kavanaugh from doing the same.

Under her own rule, Ginsburg was also willing to answer “any question about the hundreds of opinions I had written on the D.C. Circuit, about every law review article I had written, and about any speech I had given.” Under that standard, there’s plenty for Judge Kavanaugh to address. His D.C. Circuit opinion siding with the government in obstructing a seventeen-year-old immigrant’s access to abortion; his law review article criticizing the Supreme Court’s decisions upholding the Affordable Care Act; his speech praising a dissenting opinion in Roe—all of these are in play under the Ginsburg Rule.

Full disclosure and transparency from Judge Kavanaugh are not some procedural nicety, but rather a constitutional mandate. Withholding information about a nominee’s views and background hinders the Senate’s own constitutional duties. Under Article II, Section 2 of the Constitution, a Supreme Court nominee may only be confirmed “by and with the Advice and Consent of the Senate[.]” To provide meaningful advice and consent, the Senate must have full access to all information necessary to assess the nominee’s background and judicial philosophy – including substantive answers from the nominee on his understanding of the law.

As legal scholars Reva Siegel and Robert Post put it, a nominee who refuses to provide the Senate with substantive answers “effectively nullif[ies] the capacity of the Senate to acquire useful information about a nominee’s constitutional commitments.” The Senate therefore must demand direct and substantive answers from a nominee to carry out its advice and consent obligations under the Constitution. And full answers from Judge Kavanaugh are particularly crucial because the Senate is already starting at an information disadvantage after Senator Grassley refused a bipartisan request for full access to Judge Kavanaugh’s records as President George W. Bush’s staff secretary.

Recent Supreme Court history shows what non-answers tend to be hiding. At their confirmation hearings, then-Judges John Roberts and Samuel Alito each evaded answering questions about Roe. They were confirmed by the Senate anyway—and each Justice has since demonstrated hostility from the bench against reproductive rights, including voting to uphold a federal abortion method ban and to uphold Texas’s clinic shutdown laws. That’s what the Senate can expect from Judge Kavanaugh if he follows in Justices Roberts’ and Alito’s unforthcoming footsteps.

The stakes are even higher this time. President Trump himself has made Roe fair game in Judge Kavanaugh’s confirmation hearing, introducing his nominee’s views on reproductive rights into the confirmation process by promising to nominate justices who would do away with these rights “automatically.”

We can only presume that Judge Kavanaugh satisfies Trump’s anti-Roe litmus test. This presumption should hold unless and until Kavanaugh affirmatively tells the Senate that the Constitution’s liberty guarantee protects a woman’s right to make her own choices about childbearing. If Judge Kavanaugh prefers to pivot, evade, or lean on the so-called Ginsburg Rule instead, it should be abundantly clear exactly what he’s (not) saying.